AARP submitted the following policy letter on December 11, 2020:
Heidi Steinecker, Deputy Director
Center for Health Care Quality (CHCA)
Chelsea Driscoll, Chief
Public Policy and Prevention Branch
Licensing and Certification Program
California Department of Public Health
1615 Capitol Avenue
Sacramento, California 95814
RE: Skilled Nursing Facility Emergency Generator Requirements – Comments
Dear Deputy Director Steinecker and Chief Driscoll:
AARP was invited to participate in a stakeholder meeting on November 18, 2020 to discuss emergency generator requirements for skilled nursing facilities. We were asked to submit our comments by December 11, 2020 to the CA Department of Public Health. On behalf of 3.3 million AARP members in California, we urge the Department to enforce existing emergency power requirements for nursing homes and to recommend that the state increase those requirements to protect nursing home residents. Stronger requirements can help save the lives of residents during power outages resulting from public safety power shutoffs, emergencies, natural disasters, and other causes.
The growing threats resulting from the coronavirus outbreak, severe wildfires, and extreme blackouts have the potential to affect nearly every Californian -- but not everyone is affected equally. These events cause even more risks to nursing home residents. Indeed, we know that older Californians in general are most severely impacted when disaster strikes. A tragic example is the fact that nearly forty percent of deaths from COVID-19 in California have occurred in nursing homes. It is therefore critical that residents of nursing homes receive extra protections during emergencies and natural disasters.
According to a recent report from the Office of Inspector General (OIG) of the U.S. Department of Health and Human Services, “California did not ensure that selected nursing homes in the State that participated in the Medicare or Medicaid programs complied with [Centers for Medicare & Medicaid Services] CMS requirements for life safety and emergency preparedness.”  Among a sample of 20 nursing homes, OIG found 188 instances of noncompliance with emergency preparedness requirements related to written emergency plans, emergency power, plans for evacuation, and other requirements. In addition, OIG found that DPH “did not adequately follow up on deficiencies previously cited, [or] ensure that surveyors were consistently enforcing CMS requirements.”
The need for strong oversight of nursing homes has only increased since the start of the COVID-19 pandemic. We understand that DPH is not currently conducting recertification inspections of nursing homes and is therefore unable to enforce emergency preparedness requirements. Although the pandemic temporarily prevented some access to nursing homes, as of August 2020 CMS directed states to resume onsite revisit surveys, non-immediate jeopardy complaint surveys and annual recertification surveys as soon as resources are available.  We therefore call on the state to safely resume inspections and address the oversight deficiencies noted in the OIG report.
In addition, we ask that California’s nursing home regulations be strengthened to better address an emerging risk factor that will be with us for years to come: public safety power shutoffs. In October 2019, more than 100 nursing homes lost power – sometimes for days – during public safety power shutoffs that were aimed at preventing destructive wildfires – and public officials are warning that these dangerous power shutoffs could continue for a decade or more. Put simply, any loss of electrical power puts nursing home residents in peril, since most are extraordinarily vulnerable, and many rely on electrical-powered life support systems. Unsafe temperatures, unrefrigerated medications, and medical devices without power can all have deadly consequences for nursing home residents.
California’s legal standard on backup power for nursing homes is weak. A decades-old regulation (22 CCR §72641) requires skilled nursing facilities to have backup power available for only six hours, and even then, only for exceedingly limited functions. It does not require facilities to maintain safe temperatures during power outages.
Federal standards, however, go further. Under 42 CFR § 483.73, nursing homes must develop and implement emergency preparedness policies and procedures based on a risk assessment and emergency plan. According to the OIG report:
“Nursing homes are required to provide an alternate source of energy (usually a generator) for maintaining temperatures to protect patient health, food storage, emergency lighting, fire protection, and sewage disposal (if applicable). Nursing homes that have generators are required to perform weekly maintenance checks, monthly load tests, and annual fuel quality tests (if the generator operates on diesel fuel). Nursing homes located in certain seismic zones must maintain a 96-hour supply of fuel, and all nursing homes with generators should have a plan in place to keep generators fueled ‘as necessary’ during an emergency, unless they are evacuated (E-Tags 0015 and 0041).”
The 96-hour fuel supply requirement is particularly relevant to California as large, heavily populated sections of the state are in the highest seismic design zones according to the Federal Emergency Management Agency (FEMA).  OIG found that “of the 19 nursing homes we visited, 9 had 1 or more deficiencies related to emergency power…. [and] two nursing homes located in certain seismic zones did not have sufficient generator fuel on hand to last 96 hours.” In addition to potential earthquakes, recent large-scale wildfires and related power outages have shown that nearly all of the state is at great risk for natural disasters.
For these reasons, AARP California supported Senate Bill 1207, which would have required all skilled nursing facilities in the state to have an alternative source of power to protect resident health and safety for no less than 96 hours during any type of power outage. Facility evacuation plans are important but should not be the only line of protection for some of the most vulnerable Californians. Research shows that removing frail residents from their long-term care facilities can exacerbate existing physical and mental health conditions and increase the risk of death post-evacuation for residents with severe cognitive impairment.  Even if California does not settle on a 96-hour fuel requirement, some significant increase from the status quo is necessary.
Other states like Florida have already put emergency power protections in place. In September 2017, 12 elderly residents of the Rehabilitation Center of Hollywood Hills in Florida died in sweltering conditions following Hurricane Irma. Some of the residents who died had body temperatures of nearly 110 degrees due to the extreme heat in the nursing facility. Another 118 residents were evacuated from the facility and treated for dehydration, heat stress, and other heat-related conditions.
That same month, Florida established emergency rules requiring alternative power sources for nursing homes that would ensure air temperatures do not exceed 81 degrees Fahrenheit for 96 hours during periods of extreme heat. These rules were made permanent by the Florida legislature in March 2018. Florida’s fuel storage requirements do include some variation by facility size and location and a phased implementation, which California could also consider.
As the nation is focused on the COVID-19 crisis, it is worth considering that many who survive this virus with the assistance of a respirator will need oxygen support for weeks or months. Some older survivors are likely to receive this care in skilled nursing facilities.
We therefore urge DPH to take steps to better enforce existing emergency preparedness requirements for nursing homes and to recommend strengthening those requirements, especially concerning back-up power reserves.
If you have any questions about our comments, please contact Blanca Castro, Advocacy Director at (916) 556-3021 or at email@example.com.
 Office of Inspector General (OIG) of the United States Health and Human Services Agency. California Should Improve Its Oversight of Selected Nursing Homes’ Compliance With Federal Requirements for Life Safety and Emergency Preparedness. November 2019. Available at: https://oig.hhs.gov/oas/reports/region9/91802009.pdf
 Centers for Medicare & Medicaid Services. Press Release - CMS Announces Resumption of Routine Inspections of All Provider and Suppliers, Issues Updated Enforcement Guidance to States, and Posts Toolkit to Assist Nursing Homes. August 17, 2020. Available at: https://www.cms.gov/newsroom/press-releases/cms-announces-resumption-routine-inspections-all-provider-and-suppliers-issues-updated-enforcement
 Federal Emergency Management Agency. Earthquake Hazard Maps. Available at: https://www.fema.gov/emergency-managers/risk-management/earthquake/hazard-maps
 See Willoughby M, Kipsaina C, Ferrah N, Blau S, Bugeja L, Ranson D, Ibrahim JE. Mortality in Nursing Homes Following Emergency Evacuation: A Systematic Review. J Am Med Dir Assoc. August 2017; see also Brown LM, Dosa DM, Thomas K, Hyer K, Feng Z, Mor V. The effects of evacuation on nursing home residents with dementia. Am J Alzheimers Dis Other Demen. September 2012.
AARP Urges State of California to Strengthen Emergency Generator Requirements for Nursing Homes
AARP submitted the following policy letter on December 11, 2020: